For years, the State of Florida Alcohol Testing Program, a division of the Florida Department of Law Enforcement has been denying that they possessed the software used in the Intoxilyzer 8000 in Florida. When the Intoxilyzer 8000 first starting being used in Florida the software in it was version 8100.26. Many judges throughout the State ordered FDLE to disclose the software in their possession. In response the State allegedly sent all copies of the software back to CMI, the manufacturer of the machines. Recently a Defense team lead by Attorney David S. Katz was granted access to the Intoxilyzer software and during their inspection discovered version 8100.26 of the software embedded in the software used to upload new information to the individual Intoxilyzers. When confronted with this discovery, Patrick Murphy, the new head of FDLE’s Alcohol Testing program was forced to admit that he did possess the software embedded in the Cobra remote transfer software. Although the State fought the Defense attempts to gain access to this software, on Wednesday, March 19, Judge James Baxley, County Court Judge in Lake County Florida, decided the Defense would be given the opportunity to inspect and examine this software.
In addition to the discovery of the version 8100.26 software still in possession of the State of Florida, it has also been recently discovered that unevaluated software has been discovered in at least three Intoxilyzers sent to the State of Florida for evidentiary use. Florida Law requires that the software be evaluated and approved before use in evidentiary breath testers. The currently approved software is version 8100.27. However, there are believed to be at least 6 different revisions to the 8100.27 software. Whether any currently in use Intoxilyzer 8000 have an unapproved version of the software is unknown at this point.
These two new avenues of defense should be explored in any DUI breath case in Florida.